Citizens International Bank Limited V. Scoa Nigeria Limited & Anor (2006)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
In the High Court of Lagos State, in the Ikeja Judicial Division, sitting in Ikeja, the judgment creditor brought an application, ex-parte praying for the debts due or accruing to the garnishee to the judgment debtor or so much thereof be attached to answer the judgment recovered against the judgment creditor on the 15th day of January, 2001.
The learned trial Judge on 8th day of May, 2002 made an order of Garnishee nisi wherein Citizens International Bank Limited, the Garnishee was ordered to appear before the court and show cause why an order will not be made on it for the payment to the judgment creditor, the outstanding judgment debt as well as the costs of the garnishee proceedings. The Garnishee caused an affidavit showing cause to be deposed on its behalf. The judgment creditor failed or did not depose to a counter affidavit. Learned trial Judge, after taking arguments of counsel, in a reserved and considered ruling, concluded as follows:
“In the circumstance, and in the light of the affidavit evidence before me, I find that no reason was indeed given by the Garnishee why sums of money in the account of the judgment debtor at the Ganishee’s Lateef Jakande Road, Ikeja branch and which account is numbered “1012720617” should not be attached to satisfy the judgment debt herein.
Accordingly, I hereby pronounce the garnishee order absolute. Accordingly, the sums of money in account No. 1012720617, being an account held in the name of the judgment debtor at the Lateef Jakande Road, Ikeja branch of the Garnishee and which sums of money stand to the credit of the judgment debtor as a creditor of the Garnishee shall be and they are hereby attached to satisfy the judgment debt yet unpaid (this being the sum of N2,800,000.00k … ) as well as costs of these garnishee proceedings.”
The Garnishee felt dissatisfied with the ruling and being aggrieved, it appealed to this court on 4 grounds of appeal. In accordance with the procedure and practice of this court, briefs of argument were settled at the appellant’s, respondents and appellant’s reply briefs. At the hearing of the appeal, the various briefs of argument were adopted and relied upon. The Garnishee, in its own brief, formulated the following three issues for determination in this appeal-
“(a) Whether learned trial Judge of the lower court was right to hold and conclude that the depositions of the judgment creditor is unchallenged in view of the depositions as contained in the affidavit showing cause of the Garnishee?
(b) Whether even in view of the affidavit evidence the learned trial Judge of the lower court was not bound to accept the affidavit evidence of the Garnishee, which is supported by documentary evidence?
(c) Whether the learned trial Judge was right when he suo motu held that some paragraphs of the affidavit showing cause offend against the Evidence Act and struck out the allegedly offending paragraphs of Garnishee’s affidavit showing cause without hearing the parties?”
The appellant duly related its formulations to the grounds of appeal. He related issue (a) to grounds A and B of the grounds of appeal, while issues (b) and (c) respectively derived from grounds (C) and (D) of the grounds of appeal.
On the other hand, the respondent framed the following issues for consideration and determination in this appeal.
“3.1 1st respondent’s issue 1 framed from the appellant’s
Ground one
whether the appellant/Garnishee complied with the Garnishee order nisi of the lower court and the provisions of S. 85 of the Sheriff and Civil Process Act in its affidavit to show cause?
3.2 1st respondent’s Issue 2 framed from the appellant’s
Ground two
whether the lower court was entitled to rely on or act upon the account number contained in the appellant’s affidavit to show cause which clearly contradicted the number contained in the Garnishee order nisi.
3.3 1st respondent’s Issue 3 framed from the appellant’s
Ground three
whether the trial court erred in striking out portions of the appellant’s affidavit, which it adjudged offensive of the Evidence Act.”
Learned counsel for appellant in arguing appellant’s issue (a) read a portion of the ruling of the learned trial Judge, the respondent’s prayer leading to the ruling, paragraph 7 of the affidavit in support, paragraph 4 of the affidavit of the garnishee and another portion of the ruling before contending that the learned trial Judge wrongly relied on “spent” affidavit which accompanied the ex-parte application for garnishee proceedings which was never served on the appellant. Learned counsel for appellant further contended that the learned trial Judge erred in law when she relied on the spent affidavit in support of motion ex-parte during the Garnishee proceedings without application from the judgment creditor nor consent of the parties sought and obtained. Learned counsel for appellant referred to the cases of Finunion Ltd. v. M. V. Briz (1997) 10 NWLR (Pt. 523) 101; and Waziri v. State (1997) 3 NWLR (Pt.496) 689. In addition, learned counsel for appellant cited a large body of cases on conflicting affidavit.
I am respectfully of the view that learned counsel for appellant has conveniently and adroitly misconstrued the issue. This is not an issue of conflicting affidavit nor of using of spent affidavit. The first respondent on obtaining judgment against the second respondent, judgment debtor commenced a garnishee proceedings whereby it sought, pursuance of section 83(1) and (2) of the Sheriffs and Civil Process Act, Cap. 407 of the Laws of the Federation of Nigeria, 1990, an order of garnishee against the appellant. The learned trial Judge, after carefully considering the application brought ex-parte, granted an order nisi. Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. By this process, the court is competent to order the third party in whose hands the property of the judgment debtor is to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor or as much of it as may be sufficient to satisfy the judgment and the costs of the garnishee proceedings.
The court makes its order in two instalments or stages. The first step is a garnishee order nisi. It is an order, at that stage, that the judgment debt covered by the application made as earlier observed be paid into court to the judgment creditor within a prescribed period unless there is explanation emanating from the party on whom the order was served or made why the order should not be made absolute if the person at whom the order is directed adequately explains why the payment should not be made to the judgment creditor by the Garnishee otherwise the order becomes absolute.
The learned trial Judge in the instant appeal, on granting the garnishee order nisi in the following terms caused the same to be served on the appellant:
” …I am satisfied as to the need to grant this application.
Accordingly I order as follows –
(i) A Garnishee order nisi is hereby made directing that the sums of money in account No. 1012720617, being an account held in the name of the judgment debtor at the Citizen International Bank Limited and which sums of money stand to the credit of the judgment debtor, as a creditor of the Gamishee, be and are hereby attached to satisfy the judgment debt yet unpaid (that is, the sum of N2,800,000.00.00k – Two million, eight hundred thousand Naira only) as well as the costs of these garnishee proceedings;
(ii) The Garnishee is to appear before this court on the 11th day of June, 2002 to show cause why an order should not be made upon it for payment to the judgment creditor of the aforesaid amount of the judgment debt owed by the judgment debtor;
(iii) A copy of this order shall be served on the Garnishee and or the judgment debtor within 7 days of today’s date;
(iv) The return date, as stated earlier shall be the 11th day of June 2002. (underlining mine)
It is not the case of the appellant that it was not served with the order of the learned trial Judge commanding it to appear before her to show cause why an order absolute should not be made. It is, at this stage, the order nisi that forms the basis of making the order absolute and not the respondent’s affidavits, which ceases to have reliance. The appellant received the order and in response caused to be deposing, on its behalf, an affidavit showing cause. In the said affidavit, the appellant, without explaining the circumstances surrounding the account it was invited to explain, foisted another or a strange account on the court. He was ominously silent on account No.1012720617, which was in issue and went on the voyage of its own by dwelling on an entirely different account numbered 101002720613. The statement in respect of that account was exhibited to the affidavit and marked as exhibit “C01” It is apt at this stage to read paragraphs 4 and 5 of the said affidavit, which averred as follows –
“4. That I know as a fact that Aboseldehyde Laboratories Plc, the judgment debtor herein is a customer of Citizens International Bank Ltd with account number 101002720613 with its Lateef Jakande Branch. That I also know as a fact the said Aboseldehyde Laboratories Plc is hereby indebted to the Garnishee herein being Citizens International Bank Ltd, which debt stood at a colossal sum of N23,686,056.29k (Twenty three million, six hundred and eighty-six thousand, fifty-six Naira Twenty-nine kobo only) as at 31st day of May, 2002. A statement of account vividly depicting the above statement of fact is herein attached and marked exhibit CO.1.”
The affidavit is bereft of any evidential value. It completely ignored the issue or the substance of the order served on it and proceeded to pursue shadow. By positing another account against the one in issue, appellant was merely drawing red herring across the track. The onus placed on the appellant would only be discharged if it successfully established that the account numbered 1012720617 did not exist in its system or, if did exist, it belonged to a customer other than the judgment debtor or it was heavily in debit and not in credit or that the number stated on the order nisi has since changed to the version given by the appellant. No material was placed before the court from which it could be inferred that second respondent has only one account with the appellant. In the absence of evidence that it was impossible for a customer to maintain more than one account postulating account numbered as 101002720613 is nothing but an exercise in futility. The appellant’s affidavit failed to preponderate. It contains with respect, irrelevant materials which should and was rightly discountenanced by the learned trial Judge.
Be that as it may, garnishee proceeding is by its nature different from other court proceedings. It is peculiar in as much as it is done in stages. The ex parte application commencing the proceedings is confined to the judgment creditor and the court. Thereafter, if the judgment creditor satisfies the court on the existence of the third party who is holding money due or accruing to the judgment debtor, such a third person will be called upon to show sufficient cause why the judgment debtor’s money in the hands of the third party would not be paid over to the judgment creditor. It is therefore, in my respectful opinion, a single proceeding with two separate stages or hurdles to be cleared. In the circumstances, the cases of Finunion Ltd. v. M. V Briz (supra) and Waziri v. State (supra) are irrelevant. The court, at the first segment, listened to the applicant and in the second stage, it listened to the defence of the Gamishee before concluding the case. In this circumstance, there can be no question of revisiting an affidavit, which had been used as erroneously contended by the appellant. The proceeding to my mind, is a continuous exercise.
On the issue of the conflicting affidavit, I think the learned counsel for appellant is equally on a weak wicket. The two sets of affidavits before the learned trial Judge are not irreconcilably conflicting. The affidavits were directed at two different and distinct sets of facts. The applicant, first respondent, herein put in issue account, 1012720617, rather than joining issue with first respondent, the appellant, with respect, chose to filibuster. It set up a defence respectfully, which was parallel with the case, made out in the order nisi for it to answer. The affidavit in support of the first respondent’s motion was of little moment after the making of the order nisi and was, therefore, no longer in issue. Nor was it any longer relevant to making the order nisi absolute or otherwise. It is therefore, unnecessary in the circumstance, to call oral evidence to resolve conflicts that existed merely in the appellant’s imagination. The learned trial Judge rightly, in my view, held that the deposition of the respondent was unchallenged and uncontroverted. Where evidence is unchallenged, uncontroverted and is credible, the trial court is bound to accept it. In the case of affidavit evidence, averments not denied should be accepted and acted upon. See Badejo v. Federal Ministry of Education & Ors. (1996) 43 LRCN 2100, 2122; (1996) 8 NWLR (Pt. 464) 15 as such averments require extra deposition to challenge them: Codd v. Deleap (195) 992 LT 501.
This issue is answered in the affirmative. The appellant’s issue (b) also turns mainly on the issue of conflicting affidavit, which in the circumstances of this case has been adequately dealt with under issue (a). It will amount to unnecessary waste of the precious time of the court to go over it once more. Afterall, repetition does not improve an argument. The appellant had always been acting under a misapprehension of issue and misconception of the law. The appellant has laboured under these misconceptions throughout its issue (a) and has carried it over to the second issue. The appellant failed to depose to affidavit challenging the correctness or validity of the account number contained in the order nisi served on it. Nowhere in the garnishee affidavit showing cause was the account disputed. The account number quoted in the order nisi was never impugned. It was nowhere alleged to be wrong, inaccurate nor erroneous. Had there been an averment challenging the correctness of the account number supplied by the first respondent in its affidavit, evidential burden would have shifted and thrown back on the applicant to substantiate its claim otherwise it would have formed a basis for declining to make the order nisi absolute, whether the learned trial Judge would have refused or agreed to make the order nisi absolute would probably have turned on this piece of evidence. When evidence was available and was not produced there is a presumption that if produced it would be against the party who withheld it. See section 149(d) of Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990, which provides as follows –
“149. The court may presume the existence of any fact which if it thinks likely to have happened, regards being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –
(a)
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
See Tewogbade v. Akande (1968) NMLR 404. The evidence of numbering account in that bank was not produced. It can therefore be presumed that if the same were produced it would establish a fact, which will be unfavourable to the appellant hence, its refusal to adduce or introduce such evidence in its garnishee affidavit for showing cause.
The submission of the learned counsel for the appellant to the effect that the court below ought to have rejected the particulars of account supplied by the first respondent for failure to attach the statement of that account lacks substance. It lacks substance in that it goes into the weight to be attached to the number and not its admissibility. That an account existed with that number, to my mind, in a civil case is sufficient. The burden of proof in a civil case is on the preponderance of evidence. The most minimal proof discharges the burden on a party and throws it on the other party. See Tewogbade v. Akande (1968) NMLR 404. The burden would have been on the first respondent to produce the statement of account or some other document if the appellant had averred that such number or numbering does not belong to it. In civil cases, the burden or onus of proof is on the party who will loose if no further evidence is produced: section 136 of the Evidence Act (supra) and Alhaji Elias v. Olayemi Disu & Ors. (1962) 1 All NLR 214, (1962) SCNLR 361. The appellant failed or neglected to question the existence of the account the first respondent credited to the second respondent at its Lateef Jakande Road branch, Ikeja. It was therefore relieved of the burden of producing further evidence in the nature of statement of account to buttress the allegation. Further evidence would have been required from the first respondent if the appellant had negated the existence of such account at the alleged branch. The burden was on the appellant to give evidence of non-existence of account numbered 1012720617 before the burden could shift back on the first respondent to produce further evidence. Appellant quibbled and woefully failed, refused or neglected to do so.
Section 137 of the Evidence Act (supra) provides thus ”
137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.” (Italics mine).
See Areh v. Commissioner of Police (1959) WRNLR 230, 231; Johnson & Anor. v. Maja & Ors. 13 WACA 290. In the latter case, the plaintiffs who were the executors of a Will applied to the court to declare in solemn form for the Will as well as the codicil of the testator. The widow challenged the Will on account that it was not properly executed. It was held that in a case of this nature, the burden was on the plaintiff to show prima facie that the Will is in order; thereafter, the burden is cast upon those who attack the Will to prove affirmatively, the charges made against the Will.
The learned trial Judge sitting without a jury is in that capacity both the Judge of fact and/of law. Her ruling, in her dual capacity that –
“It is clear from a consideration of the affidavit, especially paragraphs 4 and 5 quoted above, that no reason has been given why an order absolute should not be made as regards the account in respect of which an order nisi was made. The averment of the judgment creditor in the two affidavits in support of the application instituting the garnishee proceedings to the effect that the judgment debtor maintains the account numbered 1012720617 that can be attached to satisfy the outstanding judgment debt, quite clearly remains uncontroverted. On the authority of Francis Uzondu & Ors. v. Vitus Uzondu (1997) 9 NWLR (Pt. 521) 466 at 481 and Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266, which cases are authority for the proposition that uncontradicted facts may be deemed to have been admitted by the adverse party, I accept judgment creditors said averments as true,”
remains unassailable. It is iron cast. Appellant rather than assert the non-existence of the judgment creditor’s account number, distanced itself from it and went ahead to set up or suggest a rival account thus establishing existence of another account belonging to the judgment debtor. In the absence of evidence that it is not permissible for a customer of the appellant to operate more than one account the inference cannot be drawn that existence of the account posited by the garnishee negates the existence of the judgment creditor’s averment. As the appellant did not, expressly or impliedly, deny existence of the account number touted by the first respondent the number is deemed admitted – what is not denied is deemed admitted. See Temile vs. Awani (2001) FWLR (Pt. 62) 1937, 1953; (2001) 12 NWLR (Pt. 728) 726. In the absence of any explanation, the learned trial Judge rightly, in my view, made absolute the account in respect of which she granted the order nisi.
Finally under this issue, the learned counsel for respondent continued to labour under the misconception of law when he attempted to argue that the court below should have been persuaded about the correctness of the account number it supplied simply on the strength of the better evidence adduced by his client. The issue of quantity of evidence did not arise. Such a situation would have arisen if the appellant in its affidavit had impugned the validity or, credibility of the first respondent’s number contained in the order nisi served on it. It did not do so, it merely put up a parallel case without any nexus to the case it was summoned in the order nisi to answer. No reasonable tribunal operates in the manner being propounded by the appellant. The appellant should blame their former counselor legal officer who deposed to the affidavit and not the court for their misfortune. The learned trial Judge did prefer one set of figures to the other. All she said was that the appellant failed to proffer relevant explanation to avert the order nisi being made absolute.
In desperation, present learned counsel for appellant is seeking to raise viva voce, a defence which should have been contained in their affidavit. The genuineness of the account imputed to the second respondent in the garnishee bank cannot be impugned at this stage of proceedings. The address of counsel in the appellant’s brief are mere passing remarks which in law, do not go into any issue: Kasikwu Farms Ltd. v. A.-G., Bendel State (1986) 1 NWLR (Pt.19) 695, 710-711; Shomade & Anor. v. Ogunsuji Ors. 3 WACA 48 and Obade v. State (1991) 6 NWLR (Pt. 198) 435, 453. It should therefore only deal with evidence before the court and a mere mention of a matter in the course of that address is never a substitute for evidence which was available but was never adduced. It cannot however well presented and persuasive take the place of credible evidence: Yoye v. Olubode (1974) 1 All NLR (Pt. 2) 118, 123. Evidence according to Blacks’ Law Dictionary 5th Edition pg. 498 means –
“Any species of proof, or probative matters legally presented at the trial of an issue by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects etc for the purpose of inducing belief on the minds of the court.”
The deponent to the affidavit is a witness but learned counsel while delivering his address to the court does not respectfully enjoy the status of a witness. What he said in the appellant’s brief is never a substitute for the evidence, which was available but was not averred to in their relevant affidavit.
The answer to the appellant’s issue (b) is answered in the positive. Ground C of the grounds of appeal from which it was distilled fails and is also dismissed.
On issue (c), appellant, in its brief, read paragraphs 3 and 9 of its affidavit as well as the portion of the trial Judge’s ruling striking them out for incompetence and submitted that the two paragraphs do not in any way offend against the provision of the Evidence Act. He argued that none of the two paragraphs contain legal argument, prayer or conclusion, which would have made any of them to offend against the Evidence Act. The two paragraphs of the affidavit struck out read as follows –
“3. That I have been shown, a copy of the order of Garnishee nisi made in these proceedings and the accompanying Form 48 and the depositions as contained in the foregoing is in direct response to all the empty assumptions, insinuations and innuendoes upon which the Garnishee proceedings herein are predicated upon,”
- That in the light of the foregoing the Garnishee and entire action herein against the Garnishee in its entirety is extremely vexatious of the Garnishee being a proceedings initiated on punctured and unjustified assumptions as could be deciphered from the depositions herein.” (underlining mine)
On these two paragraphs, the learned trial Judge observed as follows in the ruling –
“(I will add that some other paragraphs of this affidavit, namely paragraphs 3 and 7, apart from containing strong language, which exhibits some disrespect for the court, also offend the provisions of the Evidence Act. They are, therefore, hereby struck out.)”
I concur. Indeed the two paragraphs signify nothing. They are merely full of sounds and fury. The provisions of the Evidence Act (supra), which the learned trial Judge had in mind, are sections 86, 87, 88 and 89 which provide thus –
“86. Every affidavit used in court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
- An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.
- When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
- When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”
By dint of these provisions, every affidavit used in the court should contain only a statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information derived from other sources which he believes to be true and shall not contain any extraneous matter by way of objection, prayer, legal argument or conclusion. A deponent who deposes to his belief in a matter of fact and whose belief is derived from any source other than his own personal knowledge must state the facts and the circumstances forming the basis of his belief. Where such a belief is based on information supplied by another person, the name of the informant must be stated in the affidavit and must give reasonable particulars of the informant including the time, place and circumstances of the information. Paragraph or paragraphs of an affidavit which contravene any of these provisions will be struck out by the court for incompetence. See Banque De L’ Afrique Occidentale v. Alhaji Baba Sharfadi (1963) NNLR 21; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; and Nwokanna v. Azuokwu (2000) 8 NWLR (Pt. 670) 767. I am respectfully of the view that the words “as contained in the foregoing is in direct response to all the empty assumptions, insinuations and innuendoes upon which the garnishee proceedings herein is predicated” in paragraph 3 of the affidavit are expression of opinion or conclusion by the deponent of the affidavit showing cause. Similarly, in paragraph 7, the words “the entire action herein against the Garnishee in its entirety is extremely vexatious of the Garnishee being a proceedings initiated on punctured and unjustified assumptions as could be deciphered from the depositions herein.” Smack of expression of opinion and inference and conclusion. They are not statement of facts. Having struck them out, the remaining part in each paragraph could not stand alone. The learned trial Judge rightly struck them out in their entirety.
Be that as it may, it seems to me that even paragraphs 4 and 5 of the affidavit showing cause ought to have been struck out. The deponent, Uwem Akangson, is a legal officer employed by the appellant. Accounts and account numbers are usually not kept in the legal department. Account numbers and the statement of accounts of customers not being part of his daily chores or schedules, he must have obtained the information he deposed to in these paragraphs from a banking or an accounting officer. The source of his information and the particulars of his informant including the time, place and the circumstances of this information ought to have been disclosed. He failed to do so. Paragraphs 4 and 5 are equally liable to striking out. Appellant should, therefore, consider itself very lucky, that they escaped the scalpel of the learned trial Judge. The bone and marrow of its case would have disappeared ab inito. In the absence of a cross-appeal, I am not disposed to striking them out.
The remaining grouse of the appellant under this issue is the learned trial Judge striking out paragraphs 3 and 7 of its affidavit. Learned counsel submitted that when a court raises a point suo motu, the parties must be given an opportunity to be heard on the issue, this contention was supported by a plethora of authorities. It is more than settled by a long line of cases that when a court raises a point suo motu, the parties must be afforded the opportunity to be heard on the issue particularly the party that may be adversely affected by the decision on the point raised and thereby avoid breaching the right of that party to fair hearing.
It however seems to me that the point in issue herein does not vest any of the parties with the right to be heard. The learned trial judge rightly, in my view, was entitled suo motu, to raise the issue of the admissibility of the contents of those averments and decide on it without affording the parties an opportunity to be heard. Where an inadmissible evidence, as in the instant appeal, is inadvertently admitted, the learned trial Judge in the course of writing his judgment is entitled to expunge the offending piece of evidence notwithstanding that parties to the proceedings were not heard. See Onafowokan v. Idowu (1969) 1 NMLR 77, 81; Abike v. Adedokun (1986) 3 NWLR (Pt. 30) 548, 554 and Ogboda v. Adulugba (1971) 1 All NLR 68, 72-73.
Even where matters have been improperly received in evidence in the court below, where no objection had been raised, it is the duty of the appellate court to reject it and decide the case on lawful or admissible evidence – Jacker v. International Cable Co. Ltd. (1888) 5 T.L.R 131 which was cited with approval by the Supreme Court. At p. 308 in Owonyin v. Omotosho (1961) All NLR 304, (1961) 2 SCNLR 57; (1961) NSCC 179 –
“304. At page 308 the Federal Supreme Court per Bairamian, FJ, said-
I think, with respect, that it was a mistake to rely on the proceedings in the Omotosho v. Onitabo case in arriving at a decision in the present case. I bear in mind that those proceedings went in by consent, but, where a Judge tries a case without a jury, as it is put in the head note to Jacker v. The International Cable Co. (Ltd.) (1888) 5 T.L.R.; 13, the rule is that:-
Where matter has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence.”
Assuming without so deciding learned trial Judge wrongly raised the point suo motu, that alone should not ipso facto result in the setting aside of her decision. I am respectfully of the view that it is not every omission to offer an opportunity to the parties, especially the party who will thereby be affected by the decision of the court, to be heard that will result in the reversal of the judgment unless the omission or mistake will occasion a miscarriage of justice, in the sense that if the omission had not occurred, the decision of the trial court would have been otherwise: Mora & Ors. v. Nwalusi & Ors. (1962) 1 All NLR 681, 689, (1962) 2 SCNLR 73; Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR (Pt. 584) 1, 46, 47; Atoyebi v. Gov. Oyo State (1994) 5 SCNJ 62, 84, (1994) 5 NWLR (Pt.344) 290; Ukaegbo & Ors. v. Ugoji & Ors. (1991) 6 NWLR (Pt. 196) 127, 145. There is no shred of evidence tendered before this court that if the parties, particularly appellant, had been offered an opportunity to be or heard, the decision of the learned trial judge would have been otherwise. The error is therefore not substantial to warrant setting aside of the judgment.
The answer to the appellant’s issue (c) is positive, ground (D) of the grounds of appeal from which it is derived fails and is dismissed by me. All the grounds of appeal having failed and dismissed, the appeal fails and is equally dismissed with costs which is assessed at N6,000.00 to the respondent.
In parenthesis, the contents of paragraphs 3 and 7 of the garnishee affidavit are not only strongly worded, they are intemperate and highly emotional. They are clearly disrespectful of the learned trial Judge. The deponent, Uwem Akangson, was overwhelmed with emotion, which is most unbecoming of a gentleman, a status he claims as a member of this noble profession. I hope he has since appreciated his indiscretion and purged himself of the contempt. He more than many should understand that Judges including magistrates are not servants to be freely ordered about.
Other Citations: (2006)LCN/1932(CA)
